Taylor v Police

[2007] NZCA 366

IN THE COURT OF APPEAL OF NEW ZEALAND

CA100/07
[2007] NZCA 366

BETWEENMICHAEL JOSEPH TAYLOR

Applicant

ANDNEW ZEALAND POLICE

Respondent

Hearing:20 August 2007

Court:Hammond, Robertson and Ellen France  JJ

Counsel:S N Hewson for Applicant

A M Powell for Respondent

Judgment:28 August 2007 at 11.30 am

JUDGMENT OF THE COURT

Leave to appeal is refused.

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       This is an application for special leave to appeal against conviction.  The submissions filed did not include a question which the Court could consider under s 144 of the Summary Proceedings Act 1957. 

[2]       Mr Hewson, who was only engaged as counsel in the days immediately before the hearing before us, suggested that a possible question was: 

Can evidence that is in the hands of a defendant/applicant at the time of the hearing at first instance, but in respect of which the relevance is not known or appreciated, be deemed, in the circumstances, to have not been reasonably available?

[3]       Not only must there be a question of law, but it must be one which by reason of its general or public importance or otherwise ought to be submitted to the Court: R v Slater [1997] 1 NZLR 211 (CA).

Background

[4]       Following a defended hearing in the District Court at Invercargill on 22 August 2006 (at which the appellant was represented by counsel) Judge Phillips found Mr Taylor guilty of male assaults female contrary to s 194(b) of the Crimes Act 1961.  The incident took place in the course of a regular property inspection of the applicant’s rental accommodation.   He was ordered to come up to sentence if called upon within six months.

[5]       Mr Taylor in person filed an appeal against conviction which was heard before Chisholm J on 7 November 2006.  In the reserved judgment of 10 November, the Judge refused to admit further evidence which Mr Taylor wished to introduce for his appeal.  He found that the conclusions reached by the District Court Judge were available on the evidence and that there was no justification for the High Court to interfere.  The appeal was dismissed.

[6]       On 2 March 2007 Chisholm J heard an application under s 142 of the Summary Proceedings Act for leave to appeal to this Court on a question of law. 

[7]       The Judge noted:

[7]       It seems that Mr Taylor’s primary complaint about the outcome in this Court revolves around factual issues rather than matters of principle.  I have considered each of the points that he has raised.  With the exception of his point about the incorrect reference to the letter of 6 October 2004 in para [20] of my judgment, I have not been persuaded that the points raised by Mr Taylor are matters of substance.  The problem facing Mr Taylor’s application to adduce further evidence is that the evidence existed before the matter was heard in the District Court and Mr Taylor was entitled (through his then counsel) to discovery which should have revealed the thrust of the complainant’s evidence.

[8]       While I have no doubt about Mr Taylor’s sincerity and sense of injustice at his conviction in the District Court and his feeling of grievance that the case was brought in the first place, I am afraid that his application for leave cannot come even close to qualifying under s144(2).

[8]       Leave was accordingly refused on 5 March and Mr Taylor filed an application for special leave from this Court.

The leave application

[9]       As noted by Mr Powell in his submissions, the crux of the compendious submissions filed by Mr Taylor was the complaint that the High Court declined to admit further evidence.  This focus was confirmed by Mr Hewson when he became counsel.

[10]     On the question of new evidence, the test adopted by Chisholm J was the conventional test of reasonable availability in terms of s 119(3) of the Summary Proceedings Act 1957.

Discussion

[11]     We understand the issue which Mr Taylor wished to explore related to the complainant’s answer to a question about exactly when she worked for Harcourts as a Property Manager.  Mr Taylor considered this would be of substantial relevance (if not a king-hit), whereas its probative value could only have been negligible in the determination which the District Court Judge had to make.

[12]     In his own written submissions, Mr Taylor correctly referred to the veracity test for admissibility under s 37 of the Evidence Act 2006, and the ability of this Court to receive further evidence under s 98 of that Act.

[13]     But when the decisions of Judge Phillips in the District Court and Chisholm J in the High Court are read in their totality, along with the available evidence and exhibits, it is clear that this point was peripheral, if relevant at all.  The assessment of the High Court Judge in not admitting further evidence is not open to serious challenge.  The Judge applied the statutory test to the facts of the particular case.

[14]     The issues which still trouble Mr Taylor with regard to this incident are factual matters and are nowhere near to meeting the threshold criteria Parliament has required for a second appeal. 

Aside

[15]     Mr Powell noted, in his oral submissions, that s 75 of the Summary Proceedings Act permits re-hearings.  He submitted that procedure was the appropriate course of action if there has been a denial of justice of the type complained of, and that the procedure for a second appeal in the Court of Appeal was not appropriate.

[16]     We agree that power exists but do not see it as having application in the circumstances of this case where the issues have been comprehensively and exhaustively canvassed.

Result

[17]     Leave to appeal is accordingly refused.

Solicitors:

Crown Law Office, Wellington